Quick quiz, answer the following:
True/False - You can refuse to take a breathalyzer or other blood, breath, or chemical test if you’ve been arrested for suspicion of driving under the influence (DUI) or driving while ability impaired (DWAI) in Colorado Springs.
True/False - You have no right to refuse a breathalyzer or other blood, breath, or chemical test if you’ve been arrested for suspicion of driving under the influence (DUI) or driving while ability impaired (DWAI) in Colorado.
Is that clear?
Those two seemingly contradictory sentences are both true. Let me explain.
You may not know it, but you have already given your consent to submit to a breathalyzer test if you're arrested for DUI or DWAI. Like many other states, Colorado has an “express consent” law. This means that by getting behind the wheel and driving on a road or highway in the state of Colorado, you have consented to blood, breath or chemical testing if you have been validly arrested for suspicion of DUI or DWAI.
A valid arrest is one where the officer had probable cause to believe you were driving under the influence because of how you were driving, what you said, and how he or she believes you performed in any field sobriety test (FST).
No Express Consent to Pre-Arrest Testing
But that express consent you didn’t know you gave to post-arrest testing does not include consent to any pre-arrest testing - including a breathalyzer test - during the traffic stop prior to arrest if you are over 21-years old.
Did you get that? The key is pre-arrest vs post-arrest.
Note that if you are under 21, you must submit to a pre-arrest breath test if the officer reasonably suspects that they have consumed any alcohol.
Otherwise, you are well within your rights to refuse to any field sobriety test including a breathalyzer test prior to your arrest without any penalties or consequences for refusing to do so.
The results of any FST, as well as your refusal to consent to such testing, cannot be used as evidence against you in court.
What Happens If You Refuse a Breathalyzer Test Post-Arrest
Refusing (or revoking your consent to) post-arrest blood, breath, or chemical test in Colorado Springs, however, comes with some serious consequences, including:
Automatic suspension of your Colorado driver's license for one year (though you can apply for a reinstatement of driving privileges after two months).
Designation as a Colorado “persistent drunk driver,” even if it is your first DUI arrest.
Participation in mandatory Colorado Springs DUI classes and treatment programs.
An ignition interlock device on your vehicle for at least one year following the restoration of driving privileges, and
Carrying SR-22 insurance even if you are found not guilty of DUI.
Additionally, your refusal to submit to post-arrest testing can be used against you at trial as evidence of your guilt.
Of course, if you do submit to a breathalyzer test and the results show that your BAC was over the applicable legal limit, the breathalyzer test results can be used against you.
So, you can refuse a breathalyzer test or other chemical testing after your arrest, but since you have no legal right to do so, you will suffer the aforementioned penalties for that refusal.
Free Consultation with a DUI Defense Attorney
If you are facing a DUI charge in Colorado Springs or the El Paso County courts, the best way to figure out a strategy for reducing or dropping the DUI charges is to speak with a Colorado Springs criminal law attorney experienced in defending DUI charges.
Attorney James Newby is one of the most respected DUI defense attorneys in Colorado Springs. Call his Colorado Springs downtown office to schedule your free consultation. Appointments are available 24/7 if needed.
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